DAs split over sentencing bill

Angered by the governor’s public comments about prosecutors “gaming the system” to lock up non-violent drug offenders, six district attorneys have written a letter to Gov. Deval L. Patrick urging him to restore portions of an anti-crime bill that were dropped during House and Senate negotiations.

Only six of the 11 district attorneys signed on to the July 20 letter, but those who did expressed their frustration at having many of the reforms prioritized by the prosecutors, including an update to wiretapping laws and mandatory post-release supervision, left out of the final bill sent last week to Patrick’s desk.

Saying every one of their collective priorities were excluded from the bill, the six district attorneys renewed their calls to expand on the DNA sampling provisions of the bill and to strengthen gun control laws with tougher penalties for carrying a dangerous weapon.

“Instead, what was passed as an anti-crime bill reduces sentences for people who traffic in drugs but provides no supervision once they are released back into our communities, and updates our habitual offender laws in such a way that almost no one seems able to fully embrace it (including some of the District Attorneys), and where the debate generated so much more heat than light and engendered unnecessary and regrettable ill will among victims of crimes and communities of color,” they wrote in a letter sent on Massachusetts District Attorneys Association letterhead, but not signed by the group’s president, Worcester County District Attorney Joseph D. Early Jr.

The two-page letter was signed by Essex County District Attorney Jonathan W. Blodgett, Suffolk County District Attorney Daniel F. Conley, Northwestern District Attorney David Sullivan, Cape and Islands District Attorney Michael O’Keefe, Hampden District Attorney Mark G. Mastroianni and Berkshire District Attorney David F. Capeless.

The bill proposes to eliminate parole eligibility for certain felons convicted of a third offense and would reduce mandatory minimum sentences for some drug offenses. It also allows law enforcement to collect DNA from convicted felons with cheek swabs instead of blood samples, a change prosecutors argue will help reduce a backlog of samples needing to be processed, but one that district attorneys say doesn’t address the year-long window felons have to provide a sample.

Middlesex District Attorney Gerard T. Leone said he agrees with his colleagues about the need to address some issues left out of the bill, but did not sign on to the letter and does not think the omissions should deter Patrick from signing the bill. Leone called the bill “a step in the right direction in protecting the public from the worst of the worst criminal offenders,” and a “significant improvement” over the current habitual offender law.

Also included in the final sentencing reform bill is a proposed reduction in the size of school zones that carry enhanced penalties for drug crimes. The House and Senate both agreed to a reduction in the zones from 1,000 feet to 300 feet, and a suspension of school-zone enforcement from midnight to 5 a.m.

The lead House and Senate negotiators of the sentencing bill – Rep. Eugene O’Flaherty and Sen. Cynthia Creem – both expressed reservations last week about the final package before it passed both branches, and Creem even voted against the conference report she helped craft.

Creem predicted during debate in the Senate that Patrick would amend the bill, possibly to restore discretion for judges to grant parole in certain cases to felons convicted under the proposed habitual offender law.

Referring to the current school-zone laws, Patrick said on television, “And that was being gamed, I have to say, by some prosecutors. So the idea – shrinking that zone – is a step in the right direction. Really, the right thing to do is to shrink the zone and say it applies when school is in session. I mean if it’s really about protecting kids, and not any old – not a Sunday afternoon in July. But I’m going to look at it.”

Critics of the school zones argue some dense urban communities are almost entirely covered by school zones, ensnaring low-level criminals, including many in minority communities, and resulting in longer prison-terms for offenders who never targeted children.

In their letter, the prosecutors said district attorneys recognized that a number of communities were “almost entirely” covered by school-zone laws and agreed with reducing the zone’s size. They ripped Patrick’s assertion.

“This was a gratuitous and irresponsible statement unsupported by facts. Worse, it represents the kind of discourse that you came into office pledging to reject,” the district attorneys wrote in the letter.

The prosecutors said they should not be blamed for enforcing current laws, and called it a “myth” that the prison system is overpopulated with low-level, non-violent drug offenders. They also acknowledged the problems inherent in the current 1,000-foot school zones, and worked with the Senate on an agreement to reduce the zones to 500 feet.

“Prosecutors are operating within their right in prosecuting the offense. You might not agree with the law, but that does not give you the right to accuse prosecutors of ‘gaming’ anything,” they wrote.

Though the jointly written letter stopped short of calling on Patrick to veto the bill and take another pass at it next session, as O’Keefe suggested last week on his own, the letter does asked the governor to “work with us” to improve the bill.

One comment

I’m not privvy to the Gov.’s thinking, but “gaming the system” (a) need not mean maliciously or in bad faith; (b) means mainly to “manipulate the system for a desired outcome”; and (c) is accurate for m/m’s, esp. school zone laws. Almost, maybe all DA’s use them mainly for plea bargaining leverage — i.e. when they want to — forcing waivers of trials. They aren’t “mandatory” at all, they merely shift discretion from judges to DA’s behind closed doors, invariably w/ (statistically) racially disparate outcomes. Let the DA’s tell us what %’s they each prosecuted as-is vs. bargained downward? If I’m wrong I’ll eat my keybd.